R-14

FRESHERS MOOT COURT COMPETITION, 2016

BEFORE

THE HONBLE HIGH COURT OF PATNA

IN THE CASE CONCERNING
MAINTAINABILITY OF THE CASE
UNDER ARTICLE 226 of CONSTITUTION OF INDIA,1950

IN THE MATTER OF

ARMAAN AND ORS.. .... PETITIONER

V.
VARGAS MEDICAL COLLEGE AND HOSPITAL (VMCH)................. RESPONDENT
 BEFORE THE HIGH COURT OF PATNA

THE TABLE OF CONTENTS

TABLE OF CONTENTS..II

INDEX OF AUTHORITIES.III

STATEMENT OF JURISDICTIONV

STATEMENT OF FACTSVI

STATEMENTS OF ISSUES.VIII

SUMMARY OF ARGUMENTSIX

ARGUMENTS ADVANCED.1

1. Whether the Case Is Maintainable...1

1.1 Whether cases once tried in National Commission be tried in High Court....1
1.2 Whether writ can be issued in High Court against National Commission.2
2. Whether The Surgeon At Vmch Can Be Accused Of Medical Negligence 4
2.1 That the act of the doctor was not beyond the ordinary care .4
2.2 That the act was not committed knowingly .4
2.3 That there was no foreseeability on the part of doctor ....5

3. Whether there was contributory negligence on part of Armaans father6

3.1 That there was omission on the part of the plaintiff resulting into contributory
negligence 6
3.2 Plaintiffs act of ignoring the instructions resulted into contributory negligence
.7
3.3 Negligence led to further deterioration of health ..8
3.4 The Doctrine of last opportunity8

PRAYER9

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THE INDEX OF AUTHORITIES

Statutes

The Constitution of India, 1950

Books referred

1. R.K. Bangia, Law of Torts, 23rd edition

2. V.N. Shuklas, The Constitution of India, 11th edition
3. Justice G. P. Singh, The Law of Torts, 26th edition
4. Mason and McCall Smiths, Law and Medical Ethics, 8th edition
5. Tapas Kumar Koley, Medical Negligence and the Law in India : Duties,
Responsibilities, Rights, 15th edition
6. K. Mathiharan &Amrit K. Patnaik, Medical Jurisprudence and Toxicology, 23rd
edition
7. Ratanlals & Dhirajlal, Law of Torts, 26th edition
8. H.M. SeervaiConstitutional Law Of India,4th edition,vol. 2,2007

List of cases

1. The Praga Tools Corporation v. C.V. Imanual, A.l.R. 1969 S.C. 1306
2. Cicily Kallarackal v. Vehicle Factory AIR 2012 8 SCC 524
3. Sohanlal v. Union of India, A.I.R. 1957 S.C. 529: (1957) S.C.R. 738
4. Union of India v C Krishna Reddy , AIR 2004 SC 1194
5. Dr. Rai Shivendra Bahadur v, Governing Body of the Nalunda College, A.I.R. 1962
S.C. 1210.
6. Controller of Monghyr v. Keshav Prasad, A.I.R. 1962 S.C. 1694; State of U.P. v.
Manbodhanlal, A.I.R. 1957 S.C. 912:
7. Carlsbad Mineral Water Mfg. Co. v. H.M. Jagtiani, A.I.R. 1952 Cal. 315.
8. Chintaman Rao v. Slate of M.P., A.l.R. 1951 S.C. 118.
9. State of Bombay v. Hospital Mazdoor Subba, A.l.R. I960 S.C. 610.

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10. Juggilal Kamalapat v. The Collector of Bombay, A.l.R. 1946 Bom. 280.
11. Jacob Mathew vs State of Punjab, sec 144-145 of 2004
12. Hucks VS. Cole(1993) 4 Med LR 393
13. Malay Kumar Ganguly vs Sukumar Mukherjee & Ors 1191-1194 OF 2005
14. Butterfield v. Forrester, 11 East. 60, 103 Eng. Rep. 926 (K.B. 1809)
15. Thake vs. Maurice <1986> Q.B. 644 at 688
16. Haering v. Spicer, 92 111. App. 449 (3d Dist. 1900)
17. Greater Miami, Inc. v. Gager 160 So.2d 749 (Fla. Ct. App. 1964).
18. Musachia v. Rosman 190 So.2d 47, 50 (Fla. Ct. App. 1966)
19. Jenkins v. Charleston Gen. Hosp. and Training School
20. Malay Kumar Ganguly vs Sukumar Mukherjee & Ors 1191-1194 OF 2005.

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THE STATEMENT OF JURISDICTION

The respondents have appeared to the Honble High Court of Patna in response to the petition
filed by the petitioners. The petition has been filed under Article 226 of the Constitution of
India. The memorandum of the respondents set forth the Facts, Contentions and Arguments
present in the case.

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THE STATEMENT OF FACTS

1. Mr. Armaan Dev was a 22 year old student year in the final year of his five years law
course. Armaan had felt severe headache for over a month and consulted a physician
who was providing free medicament. Even after taking the medicines, the headache
persisted.

2. When Armaan did not get slightest of relief, he decided to visit a renowned hospital,
Vargas Medical College and Hospital (VMCH) wherein he sought an appointment
from a specialist, Dr. Narendra Bhaumik. Dr. Bhaumik in his prescription listed a few
tests. On perusing Armaans report, Dr. Bhaumik recommended a neurosurgery.

3. Treatment of neurosurgery would normally call for an expenditure of about Rs. 2,

50,000. As a mandate for conducting such treatment, the authorities of VMCH
intimated Armaans father about the surgery and sought their consent. Armaans
father consented for the surgery and deposited the amount required for the surgery.

4. After the neurosurgery when Armaan gained the consciousness, he complained of

acute discomfort and found that his legs were paralysed. When armaans father
reported the same to the surgeon and the other authorities of VMCH, he was assured
that Armaan would be relieved of the ache in a few days. He was informed by the
surgeon that it would take him a minimum of 15 days to recover. Further, regular
exercise and movement of limbs were to be performed with the help of the caretaker
of Armaan. The surgeon cautioned them and categorically asked them to take utmost
care of Armaans body.

5. Within five days armaans father got apprehensive and admitted him to a Government
hospital in desperation. In panic, armaans father failed to arrange for adequate and
smooth carriage of Armaan which is vital for a patient in such grave condition.

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6. From various tests conducted at the government hospital it was diagnosed that the
soreness and pain caused to armaans body was due to the inoculation of heavy dose
of anesthesia by the surgeon at VMCH in the course of conducting the neurosurgery.
The doctors at the government hospital informed that it would take Armaan long to
get normal and he was confined to a wheelchair.

7. Armaans father accused the surgeon at VMCH for ruining his sons case by injecting
excessive into his body. He accused him of not conducting of surgery with due care
and diligence. It was also alleged that immense distress pain and irreparable loss were
inflicted on the family due to the medical negligence of the surgeon at VMCH.

8. On the other hand, VMCH countered the allegation attributing armaans plight to his
sudden and reckless movement from VMCH to the Government hospital. Further, it
was pointed out that armaans father disregarded the surgeons request to give
Armaan 15 days time to recover and to wait till the pain subsided.

9. Aggrieved by the treatment done by the VMCH, Armaan and his father knocked the
doors of the National Commission seeking compensation of Rs. 15, 00,000 did not
suffice them. Subsequently, Armaan and his father approached the Patna high court
for the appropriate remedy.

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THE STATEMENT OF ISSUES

-I-

Whether the case is maintainable before the Patna High Court.

-II-

Whether the surgeon at VMCH can be accused of medical negligence.

-III-

Whether the element of medical negligence exists on the part on Armaans father.

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THE SUMMARY OF ARGUMENTS

1. Whether the Case is Maintainable.

It is humbly submitted before the Honble Court that the present case is not maintainable
under Art 226 of the Constitution of India on two points

[A] That the procedure established under section 23 of CPA, 1986 provides provisions for
appealing only to the Supreme Court.

[B] According to Article 226 of the Constitution of India,1950 the writ of mandamus is
issued by a superior court only against an inferior court or any public authority falling within
its jurisdiction.

2. Whether the surgeon at VMCH can be accused of Medical Negligence.

It is most humbly submitted before the Honble High Court that there was no negligence on
the part of the surgeon of VMCH.

A medical practitioner was not to be held liable simply because things went wrong from
mischance or misadventure or error of judgment in choosing one of the reasonable causes of
treatment. Thus it is contended before the court of law that as per the government hospital,
though it was diagnosed that the soreness and pain caused to Armaans body was due to the
inoculation of heavy dose of anesthesia by the surgeon at VMCH in the course of conducting
the neurosurgery. Thus, it was a mere mischance and not lack of reasonable care on the part
of the anesthetist of VMCH. Therefore it can be contended that he did not act beyond
ordinary care and he adopted the usual and normal practice.

3. Whether contributory negligence exists on the part of Armaans father.

It is humbly submitted before the honorable court of law that the act on the part of the
appellant does make them fall under the ambit of contributory negligence. They did not
conform to their own protection resulting to which they are legally contributing to the cause
of injury to Armaan. In the landmark judgement of Fleishmann v. Richardson-Merrill, court
refused to extend the doctor's duty beyond the patient's voluntary termination of treatment

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which can also be seen in this case as the patient did not conform to the instruction by the
doctor. The doctor asked the patient to take certain precautions like, there should be proper
movement and exercise of the limbs and to take utmost care of Armaans body . Further
Armaan father was negligent as he failed to arrange for adequate and smooth carriage of
Armaan.

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THE ARGUMENTS ADVANCED

1. WHETHER THE CASE IS MAINTAINABLE.

It is most humbly submitted before the Honble High Court that the case is not maintainable
before the Patna High Court. A case once tried in National Commission can be appealed only
in the Supreme Court of India, according to the Section 231 of Consumer Protection Act,
1986.

1.1 Whether cases once tried in National Commission be tried in High Court

The cases once tried in National Commission cannot be tried in High Court. The cases can be
appealed only in Supreme Court. In the case of Mr. Reju Thomas, Vadackeparambil Vs.
The National Insurance Co.Limited2 it was held that It was also pointed out that as
provided under Section 17(1)(b) of the Act, State Commission has jurisdiction to call for
records and pass appropriate orders in any consumer dispute, which is pending or has been
decided by a District Forum within the State, if it appears to the State Commission that
District Forum has exercised jurisdiction not vested in it by law or has failed to exercise
jurisdiction so vested or has acted in exercise of jurisdiction illegally or with material
irregularity and if so petitioner is entitled to file a revision, challenging the order dismissing
the application filed by him, before the State Commission and therefore Article 226 or 227 of
Constitution of India cannot be invoked and the writ petition is not maintainable. Hence the
in the case at hand the writ petition is not maintainable. In the case at hand the appellants

1
Appeal.Any person, aggrieved by an order made by the National Commission in exercise of its powers
conferred by sub-clause
(i) of clause
(a) of section 21, may prefer an appeal against such order to the Supreme Court within a period of thirty days
from the date of the order: Provided that the Supreme Court may entertain an appeal after the expiry of the said
period of thirty days if it is satisfied that there was sufficient cause for not filing it within that period: 1[Provided
further that no appeal by a person who is required to pay any amount in terms of an order of the National
Commission shall be entertained by the Supreme Court unless that person has deposited in the prescribed
manner fifty per cent. of that amount or rupees fifty thousand, whichever is less.]
2
Mr. Reju Thomas, Vadackeparambil Vs. The National Insurance Co.Limited 2008 - 37468 Of 2004(I)

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approached the high court after they had been granted compensation from the National
Commission. Hence the matter is clearly not maintainable.

Recently, in a landmark case Cicily Kallarackal v. Vehicle Factory3 SC held that HC had no

jurisdiction to deal with matter against order of national commission. When legislature has

provided for statutory appeal, HC cannot bypass statutory appeal. Hence direction of caution

issued to all HC to not to entertain writ petitions challenging order of National Commission.

1.2 Whether writ can be issued in High Court against National Commission

Under Article 226 of Constitution, HC has power to issue such writs and orders as are
necessary for administrative action. A writ of Mandamus is issued by a superior court to

Compel an inferior court or a government officer to perform mandatory or purely ministerial

duties correctly.

Mandamus lies against authorities whose duty is to perform certain acts and they have failed
to do so. Under following circumstances mandamus can be issued:

(i) The applicant must have a legal right to the performance of a legal duty. It will not issue
where to do or not to do an act is left to the discretion of the authority. It was refused where
the legal duty arose from an agreement which was in dispute. The duty to be enforced by a
writ mandamus could arise by a provision of the Constitution or of a statute or of the
common law.

(ii) The legal duty must be of a public nature. In The Praga Tools Corporation v. C.V.
Imanual, A.l.R. 1969 S.C. 1306 and Sohanlal v. Union of India4 the Supreme Court stated
that mandamus might under certain circumstances lie against a private individual if it is
established that he has colluded with a public authority.

Also, in UOI v C Krishna Reddy, AIR 2004 SC 1194, it was held by the Supreme Court that
the chief function of the writ of mandamus, it is explained, is to compel performance of

3
Dr. Rai Shivendra Bahadur v, Governing Body of the Nalunda College, A.I.R. 1962 S.C. 1210.
4
The Praga Tools Corporation v. C.V. Imanual, A.l.R. 1969 S.C. 1306
Sohanlal v. Union of India, A.I.R. 1957 S.C. 529: (1957) S.C.R. 738

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public duties prescribed by Statue and to keep subordinate Tribunals and officers exercising
public functions within the limit of their jurisdiction .

Hence the writ of Mandamus is issued only against public authority. Appellant cannot issue
this writ as it is nowhere stated in facts that VMCH comes under public authority nor given
that it is colluded with a public authority.

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2. WHETHER THE SURGEON AT VMCH CAN BE ACCUSED OF MEDICAL NEGLIGENCE.

It is most humbly submitted before the Honble High Court that there was no negligence on
the part of the surgeon of VMCH.

2.1. That the act of the doctor was not beyond the ordinary care.

The degree of skill and care required by a medical practitioner explained in Haslburys Laws
of England;5

1. That there is usual and normal practice.

2. That the defendant has not adopted it.
3. The course in fact adopted is the one is the one which no professional man of ordinary
skill would have taken had he been acting with ordinary care.
A medical practitioner was not to be held liable simply because things went wrong from
mischance or misadventure or error of judgment in choosing one of the reasonable causes of
treatment.6 Thus it is contended before the court of law that as per the government hospital,
though it was diagnosed that the soreness and pain caused to Armaans body was due to the
inoculation of heavy dose of anesthesia by the surgeon at VMCH in the course of conducting
the neurosurgery. Thus, it was a mere mischance and not lack of reasonable care on the part
of the anesthetist of VMCH. Therefore it can be contended that he did not act beyond
ordinary care and he adopted the usual and normal practice.

2.2. That the act was not committed knowingly.

In one of the cases of Supreme court, it was held that any act or omission by the doctors must
be done knowingly to result into medical negligence.7

In the case of Dr. L.B Joshi vs TB Godwale8 the court defined the doctors duty of care
when he attends to his patient. The duties of care are:

1. A duty of care in deciding whether to undertake the case.

2. A duty of care in deciding what treatment to give.
3. A duty of care in administration of treatment.

5
Jacob Mathew vs State of Punjab AIR 2005 SC 3180.
6
Infra5.
7
Malay kumar Ganguly v. Sukumar Mukherjee, AIR 2010 SC 1162.
8
Dr. L.B Joshi vs TB Godwale AIR 1989 P&H 183.

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In the present case, there was due duty of care on the part of the doctor and the doctor
fulfilled his duty duly. Also, the doctor asked the patient to stay in the hospital for 15 days
but he father took him out of the hospital. Therefore, the act was unknowingly and
unwillingly and the doctors cannot be accused of the same.

2.3. That there was no foreseeability on the part of doctor.

They are responsible for protecting against foreseeable risks or dangers.The surgeon at
VMCH may claim that the injury was an unforeseeable consequence of the medical treatment
as it was held in the landmark case of Hucks VS. Cole9 that things went wrong from
mischance that was reasonably foreseeable.

Thus the accident occurred unexpectedly and it was not foreseeable.

Therefore it is humbly pleaded before the Honorable High Court that there was no medical
negligence on the part of the doctor and VMCH cannot be accused of medical negligence.

9
Hucks v Cole (1993) 4 Med LR 393.

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3. WHETHER CONTRIBUTORY NEGLIGENCE EXISTS ON THE PART OF ARMAANS FATHER.

It is humbly submitted before the honorable court of law that the act on the part of the
appellant does make them fall under the ambit of contributory negligence. They did not
conform to their own protection resulting to which they are legally contributing to the cause
of injury to Armaan. In the landmark judgement of Fleishmann v. Richardson-Merrill,
10
court refused to extend the doctor's duty beyond the patient's voluntary termination of
treatment which can also be seen in this case as the patient did not conform to the instruction
by the doctor. The doctor asked the patient to take certain precautions like, there should be
proper movement and exercise of the limbs and to take utmost care of Armaans body .
Further Armaan father was negligent as he failed to arrange for adequate and smooth carriage
of Armaan11.

3.1. That there was omission on the part of the plaintiff resulting into contributory negligence.

It is humbly submitted before the court of law that in a landmark judgement of Ray v.
Wagner12, it was held that its the patient's duty to protect himself and the physician's duty to
warn the patient of possible harm and thus it is humbly submitted before the court of law that
there was presence of warning given by the doctor which was subsequently breached that
resulted into the negligence on the part of the appellant .
Moreover, surgeon at VMCH assured that Armaan would be relieved of the ache in a few
days and it would take a minimum of 15 days to recover, further regular exercise and
movements of limbs were to be performed with the help of a assistant but there no exercise
was done on the part of plaintiff, thus disregarding the surgeons advice13. This has been
understood in the case Haering v. Spicer14 that it is the duty of a patient to follow all

10
Fleishmann v. Richardson-Merrill, 9t N. J. Super. 90, 226 A.2d 843 (Super. Ct. App. Div. 1967).
11
Factsheet 5.
12
Ray v. Wagner ,286 Minn. 539, 176 N.W.2d 101, 103 (1970).
13
Factsheet 4.
14
Haering v. Spicer, 92 111. App. 449 (3d Dist. 1900).

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reasonable advice and, if the doctor requests needed assistance and the plaintiff refuses or
neglects to procure it, the physician cannot be held liable for an injury which would have
been prevented had assistance been procured.
15
We can state this by Somma v. U. S. , in this the complainant removed the drainage pipe
inserted in the wound for drainage purpose against medical purpose against medical advice
and did not take follow up treatment, ignoring the instructions given to him. This was again
held to be a clear case of contributory negligence to the extent of dismissing the complaint.
Thus, we hereby plead before the honorable court of law that the plaintiff fails on the
parlance of no negligence on his part.

3.2. Plaintiffs act of ignoring the instructions resulted into contributory negligence.

It is humbly submitted before the court of law that the surgeon at VMCH cautioned Armaans
father and categorically asked them to take utmost care of Armaan for a minimum of 15 days
in order to recover but his fathers negligence act as he got apprehensive and admitted him to
a government hospital in desperation, & also failed to arrange for adequate and smooth
carriage of Armaan which is vital for a patient in such a grave condition, thus adding
negligence from their part. In 1964 in the case of General Hospital of Greater Miami, Inc. v.
Gager16 it so held, and in in Musachia v. Rosman 17 the court said: It is only when negligent
acts on the part of the plaintiff have a direct and proximate causal relation, or contribute in
some appreciable degree, to the injury that recovery is precluded. It has been clearly stated in
the book C.J.S. Physicians and Surgeons18It has been held that the plaintiff is under a duty to
follow the reasonable directions of his doctor, and, in the absence of directions, he is required
to exercise the ordinary care of a reasonable man in a like situation.
In 1964 in the case of General Hospital of Greater Miami, Inc. v. Gager19 it so held, and in in
20
Musachia v. Rosman the court said: It is only when negligent acts on the part of the
plaintiff have a direct and proximate causal relation, or contribute in some appreciable
degree, to the injury that recovery is precluded.

15
Somma v. U. S ,180 F. Supp. 519, 525 (E.D. Pa. 1960).
16
Greater Miami, Inc. v. Gager 160 So.2d 749 (Fla. Ct. App. 1964).
17
Musachia v. Rosman 190 So.2d 47, 50 (Fla. Ct. App. 1966)
18
C.J.S. Physicians and Surgeons 51, 67 (1951)
19
Supra 12.
20
Supra 13.

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3.3. Negligence led to further deterioration of health.

It was held before the court of law that Armaan was shifted to the Government hospital
without performing the required exercise, & movement of the limbs ,as prescribed by doctor
at VMCH , his health was further deteriorating and the doctors at government hospital
informed that it would take Armaan long to get normal and he was confined to wheelchair.
This was due to the negligent act of his father transferring him to another hospital without
adequate and smooth carriage which is a vital as for his condition and also disregarding the
precaution said by surgeon at VMCH .This is stated in the book Prosser21, Torts that
Negligence operates to aggravate the injury already done, and the rule of avoidable
consequences bars recovery of those damages that could have been avoided had the plaintiff
adhered to the standard of the reasonable care.
Another case relating to plaintiff negligence in providing the outmost care is Jenkins v.
Charleston Gen. Hosp. and Training School22where the advised the plaintiff to return to the
hospital but the plaintiff's failure to follow this advice resulted in more injury to the plaintiff.

3.4. The Doctrine of last opportunity.

The plaintiff had the doctrine of last opportunity if he acted on the said surgeon as to perform
the regular exercise and to take outmost care and give time to recover but the father failed to
provide the due care as said by surgeon at VMCH. By this we can join with case of
Butterfield v Forrester23 where the court determined that the plaintiff had failed to use
common and ordinary caution, and he was therefore barred from recover.

21
Prosser, Torts 67 (3d ed. 1964)
22
Jenkins v. Charleston Gen. Hosp. and Training School.

23
Butterfield v. Forrester, 11 East. 60, 103 Eng. Rep. 926 (K.B. 1809).

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THE PRAYER

Wherefore, in the light of the authorities cited, questions presented and arguments advanced,
it is most humbly pleaded before the Honble Court that this Court adjudge and declare that:

v That the case is not maintainable.

v The surgeon at VMCH is not liable under medical negligence.
v The surgeon at VMCH is not liable under medical negligence and all the liability of
medical negligence shifts upon the Armaans father.

And pass any other order, direction, or relief that it may deem fit in the best interests of
justice, fairness, equity and good conscience.

ALL OF WHICH IS MOST RESPECTFULLY SUBMITTED.

COUNSEL FOR THE RESPONDENTS